2015 (12) TMI 730 - AT - Central Excise

Excess duty adjustment permitted in provisional assessments: Case law precedent impacts tribunal decision

M/s. Raptakos Brett & Co. Ltd. Versus Commissioner of Central Excise, Mumbai

The Tribunal allowed the adjustment of excess duty paid by the appellant against the short duty on finalization of the provisional assessment, following ... Denial of Adjustment of excess payment paid against the short payment paid at the provisional assessment - whether during the course of assessment of provisional assessment, excess duty paid by the appellant can be adjusted against short payment paid at the time of finalisation of assessment or not - Held that:- appellant has not sought refund of the excess duty paid - Reliance placed by the Ld. AR in Excel Rubber Ltd. (2011 (3) TMI 527 - CESTAT, NEW DELHI (LB)) is not applicable when the decision of the Hon'ble High Court of Karnataka is available. Further, the case of GIS Cotton Mills Ltd. (2013 (6) TMI 119 - Calcutta High Court) relied upon by the ld. AR is not applicable to the facts of this case as in this case the assessee sought refund of the excess duty paid. Therefore, as in this case where the appellant has not claimed refund of the excess duty paid, the case is covered by the BSL Ltd. (2014 (9) TMI 771 - CESTAT NEW DELHI). Accordingly, the adjustment of excess duty paid by the appellant against short duty on finalisation of the provisional assessment is permissible. Accordingly, impugned order is set aside - Decided in favour of assessee. Issues:1. Adjustment of excess duty paid against short payment in provisional assessment.Analysis:The appellant, a manufacturer of medicaments, appealed against the denial of adjustment of excess payment against short payment during provisional assessment. The appellant had paid excess duty in some cases and short paid duty in others. The appellant argued that since they had collected duty from customers and paid it to the department, the doctrine of unjust enrichment should not apply, citing judgments from the Hon'ble High Court of Karnataka and a decision from CESTAT Delhi. On the contrary, the ld. AR contended that the adjustment was not permissible based on a decision by the Larger bench of the Tribunal and a judgment from Calcutta High Court.The main issue revolved around whether the excess duty paid during provisional assessment could be adjusted against short payment during finalization. The Tribunal referred to the case of BSL Ltd. where a similar issue was addressed. The Tribunal noted that the judgment of the Hon'ble Karnataka High Court in Toyota Kirloskar Auto Parts Pvt. Ltd. held that such adjustment was permissible. Since the appellant did not seek a refund of the excess duty paid, the Tribunal found the case to be covered by the BSL Ltd. decision. Therefore, the adjustment was deemed permissible, and the impugned order was set aside, allowing the appeals with consequential relief.In conclusion, the Tribunal allowed the adjustment of excess duty paid by the appellant against the short duty on finalization of the provisional assessment, based on the precedent set by the Hon'ble Karnataka High Court's judgment and the specific circumstances of the case where no refund of excess duty was claimed. The decision highlighted the importance of case law in determining the admissibility of such adjustments in the context of provisional assessments.